The firm’s Global Trade & Investment Group, based in our Washington office, combines decades of experience in the executive and legislative branches with technical experience in a broad range of international legal and policy areas. We advise U.S. and multinational companies global financial institutions, and investment funds operating or investing in a variety of industries including financial services, transportation, communications, insurance, manufacturing, agriculture and technology.
Our group provides legal and strategic advice regarding compliance with various international trade laws, including:
- Economic Sanctions
- Export Controls
- The Committee on Foreign Investment in the United States
- Anti-Money Laundering / Bank Secrecy Act
- International Trade Policy and Negotiations
- Campaign Finance
- Lobbying and Ethics
- Monitoring Congress and the Executive Branch
Our lawyers actively participate in the ongoing dialogue around international trade and national security-related issues, and our clients look to us to analyze and report on significant legislative, regulatory, and policy developments.
We provide clients with the full range of regulatory and compliance advice involving government relations and international regulation, including:
- Compliance with sanctions, export controls, and anti-money laundering laws and regulations
- National security reviews and navigating the Committee on Foreign Investment in the United States (CFIUS) process
- Development and implementation of compliance programs
- Development of AML and sanctions-related provisions in subscriptions materials, and enhanced due diligence on high-risk investors, for our investment fund clients
- Due diligence and contractual undertakings for M&A, lending, and capital markets transactions
- Responding to inquiries from other federal agencies, including the SEC, and state authorities that administer divestment laws
- License requests, voluntary self-disclosures, and responses to administrative subpoenas with the Treasury, Commerce and State Departments
- Internal investigations for potential violations
- Representing clients in administrative and criminal enforcement actions, in collaboration with our White-Collar Defense Group to cover all stages of administrative enforcement and federal litigation
Related Practice Areas
Experience
We advise foreign and domestic clients in national security reviews of transactions involving foreign investment in a U.S. person, including notification to CFIUS under the “Exon-Florio” law and the Department of Defense under the National Industrial Security Program Manual (NISPOM). We have advised both acquirers and targets on CFIUS issues in a wide variety of transactions.
The process in the United States for reviewing the national security implications of foreign acquisitions of U.S. businesses is complex, nontransparent, and often unpredictable. Willkie’s Global Trade & Investment Group is regularly sought to assist foreign acquirers and domestic targets with all aspects of this onerous review process, including the threshold determination of whether a particular transaction warrants notifying the U.S. government. We have engaged in confidential discussions with CFIUS staff regarding possible transactions, or arranged such discussions for our clients.
Our team works with clients to navigate the CFIUS process, including through the preparation of declarations and notices to CFIUS and the negotiation and implementation of mitigation agreements. We call upon the technical knowledge of attorneys in our Washington, New York, and European offices in a broad range of practice areas relevant to the U.S. national security screening review process, including financial institution and securities law, technology and telecommunications, intellectual property, mergers and acquisitions, asset management, antitrust and competition law, and national security and export controls law. Our teams include lawyers with many years of experience working with all major federal agencies and Congress.
Drawing on our attorneys’ executive and legislative experience, we advise domestic and foreign companies on the U.S. and international trade policy landscape. This includes international trade agreements and negotiations involving regional trade agreements (e.g., Transatlantic Trade and Investment Partnership and the United States-Mexico-Canada Agreement); multilateral negotiations under the World Trade Organization; and guidance on the movement of international trade-related legislation in Congress. We are able track individual trade-related issues as well as broader issues concerning the global trading system.
We provide numerous clients involved in hedge fund, arbitrage and portfolio investments with information and analysis on a wide variety of Washington-related issues. Examples are airline loan guarantees, internet taxation legislation, terrorism risk insurance legislation, and mergers and acquisitions in highly regulated industries such as air transportation and telecommunications.
We assist clients in complying with the requirements and limits imposed on political contributions and political activities under the Federal Election Campaign Act, including assisting in forming and registering political action committees, and under State campaign finance laws and regulations.
We advise clients on the requirements of the Lobbying Disclosure Act (LDA) and assist them in registering and filing periodic reports of lobbying activities. We also advise clients on the requirements of the Foreign Agents Registration Act (FARA) and the Congressional and Executive Branch restrictions on gifts, entertainment, and travel.
Our attorneys are a top choice for advising U.S. and foreign clients on all types of cross-border compliance and enforcement issues , including economic sanctions administered by the U.S. Treasury Department’s Office of Foreign Assets Control (OFAC) as well as sanctions programs administered by other U.S. and international authorities. Taking a commercial approach to applying sanctions law and regulations, we work to understand the needs of our clients to effectively provide integrated guidance to global businesses. In the face of a rapidly changing sanctions landscape, we help advance our clients’ interests in the exploration of new markets and opportunities while remaining compliant with U.S. and European sanctions.
Our in-depth experience covers all aspects of U.S. export controls under the Export Administration Regulations (EAR) administered by the U.S. Commerce Department’s Bureau of Industry and Security (BIS) and the International Traffic in Arms Regulations (ITAR) administered by the U.S. State Department’s Directorate of Defense Trade Controls (DDTC). With experience in the full range of export control services, we assist clients dealing in both dual-use and defense products and services. Alongside our lawyers in London, Paris, Rome, and Frankfurt , we also provide comprehensive guidance on export controls of the United Kingdom, the European Union, and its Member States.
We advise clients on compliance with antiboycott laws administered by the Treasury and Commerce Departments, including the preparation of related reports to the Internal Revenue Service and the Department of Commerce.
We work seamlessly with the firm’s Private Equity, Asset Management, and Corporate & Financial Services groups to support due diligence efforts in proposed mergers, acquisitions, debt and equity offers, and lending transactions by representing financial institutions, private equity firms, and public and private companies on regulatory compliance with sanctions and export controls.
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Recognition & Awards
Exon-Florio and CFIUS
The process in the United States for reviewing the national security implications of foreign investment in the United States is increasingly complex, non-transparent, and often unpredictable. Our attorneys have participated in the CFIUS process from the White House and CFIUS member agencies, and now guide clients through the CFIUS review process, post-closing CFIUS reviews, and negotiation of national security agreements with the CFIUS agencies. Willkie’s Global Trade & Investment Group is a leading practice that advises foreign acquirers and domestic targets with all aspects of this onerous review process, from the threshold determination of whether a particular transaction warrants notifying the U.S. government, to the development of declarations and notices, to negotiating and implementing mitigation agreements. Our lawyers in-depth experience and technical capabilities help clients avoid delays that can impede deals.
The proliferation of foreign ownership and control of U.S.-based businesses in all sectors and at all levels of operation has been one of the hallmarks of economic globalization over the last two decades. The historic investment flow of U.S.-based multinationals expanding abroad has been counterbalanced, and in many years exceeded, by foreign acquisitions of U.S. entities. While the United States maintains, at least in principle, an “open investment” policy, that policy has been significantly tempered by concerns over protecting U.S. national security, as demonstrated by the passage of the Foreign Investment Risk Review Modernization Act of 2018 (FIRRMA).
U.S. law has long restricted foreign investment in key defense and intelligence activities, as well as in industry sectors such as airlines and telecommunications. However, over the past two decades the government has established an increasingly more rigorous and systematic investment screening regime, and has sought to apply that regime to an ever-widening range of transactions.
Our Global Trade & Investment Group works with clients to manage CFIUS notifications and reviews. The group calls upon the technical experience of attorneys in our Washington, New York, and European offices in a broad range of practice areas relevant to the U.S. national security screening review process, including financial institution and securities law, technology and telecommunications, intellectual property, mergers and acquisitions, asset management, antitrust and competition law, and national security and export control law.
This close collaboration of the firm’s attorneys across multiple offices and disciplines of law provides clients with comprehensive, practical advice and support optimally tailored for their particular CFIUS-related issues. Clients count on us to successfully navigate the CFIUS and related U.S. national security review processes, minimizing the risk of adverse effects on their transactions.
U.S. government perception of what constitutes national security has significantly broadened in recent years to include both “critical technologies” and “critical infrastructure.” Many more economic sectors are now considered appropriate for CFIUS review, including information technology, financial services, energy, environmental services, telecommunications, aviation and space technology, and defense-related activities. In addition, the increasing activity of commercial enterprises involving foreign government participation, sovereign wealth funds, and other foreign government investment vehicles, all of which have sought to purchase U.S. businesses, have served to expand the scope of transactions that raise national security questions.
OUR EXPERIENCE
We have advised both acquirers and targets on CFIUS issues in a wide variety of transactions. Representative transactions include:
- The multibillion dollar merger of two European information technology companies (both with manufacturing facilities in the United States) in which CFIUS required that the parties negotiate with the Department of Homeland Security and the Department of Justice to reach a “mitigation agreement” establishing national security protections
- The acquisition by a European company of a variety of businesses being divested by another European company, which included U.S. transportation, aviation, and space technology activities
- The transfer of significant minority ownership in a foreign company with U.S. defense operations between two foreign shareholders
- The acquisition of a U.S. petroleum services company by a foreign purchaser
- The acquisition of a U.S. communications satellite company by a foreign telecommunications company
- The acquisition of a U.S. telephone company by a foreign purchaser
- The acquisition of U.S.-based international freight forwarding company by a foreign maritime container company
- The acquisition of a U.K. manufacturer of cyber-security devices primarily operating in the United States by a diversified foreign technology company in which a foreign government owned significant equity
- The negation of a national security agreement with CFIUS agencies following the post-acquisition review of the acquisition of a software developer with U.S. sales operations
In addition to these transactions, we have worked with both foreign and domestic clients to evaluate the extent to which possible transactions might require or merit CFIUS notification, and the expected timetable and prospects for CFIUS review and approval with or without national security conditions. We have engaged in confidential discussions with CFIUS staff regarding possible transactions, or arranged such discussions for our clients.
MANAGING THE PROCESS
The U.S. national security review process requires parties to a proposed transaction to understand and manage a combination of technical, administrative, legal, and political challenges within a limited timetable. Parties must be prepared to provide detailed information under very short deadlines, educate government officials about their businesses, deal with diverse and sometimes conflicting concerns of multiple government agencies, and recognize and respond to possible political influences on those agencies. We have the experience to meet these challenges. Additionally, when clients need or wish to utilize outside public relations or government relations consultants in support of a transaction, we establish precise goals and strategies, help create key informational and media materials, and provide overall coordination and supervision. Where appropriate, we identify suitable public affairs or government relations consultants or work with consultants already associated with our clients.
Some of the specific tasks we cover are:
- Evaluating the transaction and advising on whether a declaration or notification is warranted
- Forming the CFIUS team within the acquirer and the target and developing a CFIUS strategy
- Arranging a pre-notification briefing for CFIUS agencies and preparing briefing materials
- Preparing the declaration or notification and filing with CFIUS
- Meeting with CFIUS member agencies and advising on follow-on investigations
- Preparing and filing required notifications with the Department of State under the International Traffic in Arms Regulations (ITAR) and addressing other issues involving goods and services covered by U.S. export control laws
- Advising and where appropriate representing clients in complying with the novations provisions of the Federal Acquisition Regulations (FAR)
- In the case of U.S. entities holding security clearances, notifying and filing with the Defense Security Service (DSS) of information on foreign ownership, control, or influence (FOCI) required by the National Industrial Security Program Operating Manual (NISPOM), and if required instituting measures to address FOCI concerns
- Negotiating and implementing mitigation agreements
- Dealing with possible opposition, congressional interest, and public relations
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